CED Properties, LLC v. City of Oshkosh

2018 WI 24, 909 N.W.2d 136, 380 Wis. 2d 399
CourtWisconsin Supreme Court
DecidedApril 3, 2018
Docket2016AP000474
StatusPublished
Cited by22 cases

This text of 2018 WI 24 (CED Properties, LLC v. City of Oshkosh) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CED Properties, LLC v. City of Oshkosh, 2018 WI 24, 909 N.W.2d 136, 380 Wis. 2d 399 (Wis. 2018).

Opinions

REBECCA GRASSL BRADLEY, J.

*409¶ 1 CED Properties, LLC (CED) challenges the special assessment imposed by the City of Oshkosh (City)1 following the reconfiguration of a traditional traffic light intersection into a roundabout.2 We review the unpublished court of appeals decision, *141CED Properties, LLC v. City of Oshkosh, No. 2016AP474, unpublished slip op., 2017 WL 218343 (Wis. Ct. App. Jan. 18, 2017), affirming the circuit court's grant of summary judgment in favor of the City.3 CED raises two issues: (1) whether the term "special benefits" in Wisconsin's eminent domain statute has the same meaning in Wisconsin's special assessments statute, and if so, whether the City's denial of the existence of any special benefits during the earlier eminent domain proceeding precludes the City from asserting the conferral of special benefits in the later special assessment action; and (2) whether CED raised genuine issues of material fact precluding summary judgment.

¶ 2 We hold that "special benefits" has the same meaning under both statutes. Although the failure to raise the issue of special benefits in an eminent domain action does not necessarily preclude a municipality from later doing so in a special assessment action, a municipality's admission that special benefits are non-existent in the context of an eminent domain proceeding constitutes relevant evidence in a later challenge to the special assessment.

*410¶ 3 We further hold the court of appeals erred in concluding CED failed to overcome the presumption of correctness afforded the City's special assessment and to establish sufficient genuine issues of material fact. The affidavit of CED's expert raises material factual issues in dispute, including whether the roundabout project conferred a local rather than a general benefit, whether the project conferred any special benefits on CED's property or actually diminished its value, and whether the amount of the special assessment was fair and equitably apportioned among the commercial properties involved as well as proportionate to the benefits accruing to the property. Because we conclude CED overcame any presumption of correctness by presenting competent evidence to the contrary, we reverse the decision of the court of appeals and remand to the circuit court for a trial.

I. BACKGROUND

¶ 4 CED owns property located on the northeast corner of the intersection of United States Highway 45 and State Highway 76. Locally, United States Highway 45 is called Murdock Avenue and State Highway 76 is called Jackson Street. A Taco Bell franchise has operated on the property since 1992.

¶ 5 In January 2008, the City and the Wisconsin Department of Transportation entered into an improvement plan agreement to reconstruct and install a multi-lane roundabout at the Jackson-Murdock intersection. The reconstruction plan proposed the removal of traffic signals, concrete and asphalt paving, concrete driveway approaches, sidewalk replacement and repair, sanitary and storm sewer laterals, and the improvement of streetscaping and landscaping. The plan required the City to take about six percent of CED's *411property to ensure enough space to build the roundabout. The City used its power of eminent domain under Wis. Stat. ch. 32 to do so. In April 2012, after lengthy litigation, the City and CED agreed the City would pay CED $180,000 just compensation for the taking. During that litigation, the City filed with the circuit court the appraisal of its expert, Patrick Wagner. According to Wagner's report, the City's partial taking caused CED's property to decrease in value by $38,850, and he testified during his deposition that the taking did not confer *142any "special benefits" on CED's property under Wis. Stat. § 32.09(3) (2015-16).4

¶ 6 In July 2010, the City passed a resolution that levied special assessments upon CED's property and other commercial properties pursuant to its police power under Wis. Stat. § 66.0703(1)(a)5 to help fund *412the intersection improvement project. CED challenged the special assessment, but the City argued the challenge was untimely. That dispute ended after this court ruled that CED's appeal of the assessment was timely and its complaint sufficient; we instructed the circuit court to grant summary judgment in favor of CED. See CED Properties, LLC v. City of Oshkosh, 2014 WI 10, 352 Wis. 2d 613, 843 N.W.2d 382 [hereinafter "CED I"].6

¶ 7 Following this court's decision in CED I, the City re-assessed CED pursuant to Wis. Stat. § 66.0703(10),7 imposing a special assessment of $19,486.36 based on CED's frontage along Jackson Street and $20,616.67 based on CED's frontage along Murdock Avenue for a total special assessment of $40,103.03.8 The City issued a final resolution authorizing the re-assessment and a report describing the *413special benefits conferred upon CED as: "a substantial increase in accessibility, which includes safer, lower cost, and shorter travel times for customers, deliveries and employees. These special benefits are different in kind than those enjoyed by the public for through traffic." The City said additional special benefits were conveyed by correcting sidewalk defects in sections contiguous *143with the property, which "provide[d] a safe corridor for pedestrians to access the site," and by improving the streetscape, which enhanced the property's overall aesthetics.

¶ 8 The City's report further explained that the project improved the intersection's primary function of moving and carrying traffic (a "community benefit") as well as the secondary benefit of providing access to traffic flow (a "special benefit" to abutting property owners, like CED).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Koble Investments v. Elicia Marquardt
Wisconsin Supreme Court, 2026
Stephan Lane v. Riley Kummet
Court of Appeals of Wisconsin, 2026
State v. Brian Tyrone Ricketts, Jr.
Court of Appeals of Wisconsin, 2025
Kjd, LLC v. City of Tea
2025 S.D. 22 (South Dakota Supreme Court, 2025)
Wisconsin Property Taxpayers, Inc. v. Town of Buchanan
2023 WI 58 (Wisconsin Supreme Court, 2023)
Michael Hegna v. Meyer Sales Company Inc.
Court of Appeals of Wisconsin, 2022
Estate of Swannie Her v. City of West Bend
Court of Appeals of Wisconsin, 2022
Katherine Baumel v. Society Insurance
Court of Appeals of Wisconsin, 2021
Village of Slinger v. Polk Properties, LLC
2021 WI 29 (Wisconsin Supreme Court, 2021)
Michael G. DeSombre v. James I. Boldebuck
Court of Appeals of Wisconsin, 2019
Enbridge Energy Company, Inc. v. Dane County
2019 WI 78 (Wisconsin Supreme Court, 2019)
Town of Rib Mountain v. Marathon County
2019 WI 50 (Wisconsin Supreme Court, 2019)
Stuart White v. City of Watertown
2019 WI 9 (Wisconsin Supreme Court, 2019)
Soletski v. Krueger Int'l, Inc.
2019 WI App 7 (Court of Appeals of Wisconsin, 2019)
State v. Michael L. Cox
Wisconsin Supreme Court, 2018

Cite This Page — Counsel Stack

Bluebook (online)
2018 WI 24, 909 N.W.2d 136, 380 Wis. 2d 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ced-properties-llc-v-city-of-oshkosh-wis-2018.